Proposed Sections Before an agency may permanently adopt a new or amended section, or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before any action may be taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive sections, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 22. EXAMINING BOARDS Part XV. Texas State Board of Pharmacy Chapter 291. Pharmacies All Classes of Pharmacy 22 TAC sec.sec.291.5, 291.7, 291.12, 291.15-291.17 The Texas State Board of Pharmacy proposes amendments to ssec.291.5, 291. 7, 291.12, and 291.15-291.17, concerning Closed Pharmacies, Change of Pharmacist Employment, Fire or Other Disaster, Notification of Theft or Loss of a Controlled Substance, Definitions, and Controlled Substance Inventory Requirements. These amendments if adopted will require pharmacies to: (1) inventory butorphanol (Stadolz), nalbuphine (Nubain) and carisoprodol (Soma) annually and on change of pharmacist-in-charge; and report a theft or significant loss of dangerous drugs. Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary, has determined that for the first five-year period the sections are in effect there will be no fiscal implications as a result of enforcing or administering the sections. Mr. Brinkley also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections as proposed will be the protection of the health of the citizens of the State of Texas through better control of these drugs. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments may be submitted to Fred S. Brinkly, Jr., R.Ph., M.B.A., Texas State Board of Pharmacy, 8505 Cross Park Drive, Suite 110 Austin, Texas 78754-4533. The amendments are proposed under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act; and sec.17(b), which provided the Board with the authority to specify the minimum standards for maintenance of prescription drug records in a pharmacy. sec.291.5. Closed Pharmacies.
    The pharmacist-in-charge of a pharmacy that ceases to operate as a pharmacy, shall within 10 days of the cessation of operation, forward to the board a written notice of the closing which includes the following information: (1)-(2) (No change.) (3) a statement attesting that an inventory as specified in sec.291. 17 of this title (relating to Inventory Requirements)
      [of all controlled substances on hand] has been conducted; and (4) (No change.) sec.291.7. Change of Pharmacist Employment. (a) (No change.) (b) Change of pharmacist-in-charge of a pharmacy. (1) On the date of change of the pharmacist-in-charge of a Class A (Community) or Class C (Institutional) Pharmacy, an inventory of the following [controlled substances] shall be taken: (A) (No change.) (B) all dosage forms containing pentazocine (e.g.,
        Talwin); (C) all dosage forms containing phentermine (e.g.,
          Ionamin, Fastin, Adipex-P, etc.); (D) all dosage forms containing diazepam (e.g.,
            Valium); (E) all dosage forms containing phendimetrazine ( e.g.,
              Bontril, Plegine, Prelu-2, etc.); (F) all [oral liquid] dosage forms containing codeine; (G) all dosage forms containing hydrocodone (e.g.,
                Tussionex, Tussend, Vicodin, Hycomine, etc.); (H) all dosage forms containing alprazolam (e.g.,
                  Xanax); [and] (I) all dosage forms containing triazolam (e.g.,
                    Halcion)[.] ; (J) all dosage forms containing butorphanol (e.g., Stadol); (K) all dosage forms containing nalbuphine (e.g., Nubain); and (L) all dosage forms containing carisoprodol (e.g., Soma). (2)-(4) (No change.) sec.291.12. Fire or Other Disaster. If a pharmacy experiences a fire or other disaster, the following requirements are applicable. (1) Responsibilities of the pharmacist-in-charge. (A) (No change.) (B) The pharmacist-in-charge or designated agent shall comply with [one of] the following procedures. (i) If controlled substances , dangerous drugs,
                      or DEA order forms are lost or destroyed in the disaster, the pharmacy shall: (I) notify the Drug Enforcement Administration (DEA), Department of Public Safety (DPS) and Texas State Board of Pharmacy (Board) of the loss of the controlled substances or order forms. A pharmacy shall be in compliance with this section by submitting to each of these agencies
                        [the board] a copy of the Drug Enforcement Administration's report of theft or loss of controlled substances, DEA Form-106, immediately on discovery
                          [within 1O days] of the loss; and (II) notify the Texas State Board of Pharmacy in writing of the loss of the dangerous drugs by submitting a list of the dangerous drugs lost. (ii) If the extent of the loss of controlled substances or dangerous drugs
                            is not able to be determined, the pharmacy shall: (I) take a new, complete inventory of all remaining drugs specified in sec.291.17(c) of this title (relating to Inventory Requirements);
                              [controlled substances; and] (II) submit to DEA[,] and
                                DPS [and the board] a statement attesting that the loss of controlled substances is indeterminable and that a new, complete inventory of all remaining controlled substances was conducted and state the date of such inventory[.] and (III) submit to the board a statement attesting that the loss controlled substances and dangerous drugs is indeterminable and that a new, complete inventory of the drugs specified in sec.291.17(c) of this title was conducted and state the date of such inventory. (C) (No change.) (D) If the pharmacy moves to a temporary location, the pharmacist shall comply with s291.2 of this title (relating to Change of Location and/or name). If the pharmacy returns to the original location, the pharmacist-in- charge shall again comply with sec.291.2 of this title.
                                  [send written notification to the board of the change of address within 10 days and further, shall send written notification to the board of the return to the permanent location within 10 days of the return]. (E)-(F) (No change.) (2) (No change.) sec.291.15. Notification of Theft or loss of a Controlled Substance or a Dangerous Drug. (a) Controlled Substances.
                                    For the purposes of the Act, sec.32, subsection (a) the theft or significant loss of any controlled substance by a pharmacy shall be reported in writing to the board immediately on
                                      [within 10 days of] discovery of such theft or loss. A pharmacy shall be in compliance with this subsection by submitting to the board a copy of the drug enforcement administration report of theft or loss of controlled substances, DEA Form 106, or by submitting a list of all controlled substances stolen or lost. (b) Dangerous Drugs. A pharmacy shall report in writing to the board immediately on discovery, the theft or significant loss of any dangerous drug by submitting a list of the name and quantity of all dangerous drugs stolen or lost. sec.291.16. Definitions. Any term not defined in this chapter shall have the definition set out in the Texas Pharmacy Act, sec.5 (Texas Civil Statutes, Article 4542a-1)
                                        [House Bill 1628, sec.5, Acts of the 67th Legislature, 1981]. sec.291.17. [Controlled Substances] Inventory Requirements. (a) General Requirements. (1)-(4) (No change.) (5) The inventory shall include all stocks of the following drugs
                                          [controlled substances] on hand on the date of the inventory (including any [controlled substances] which are out-of-date):
                                            [.] (A) all controlled substances; (B) all dosage forms containing butorphanol (e.g., Stadol); (C) all dosage forms containing nalbuphine (e.g., Nubain); and (D) all dosage forms containing carisoprodol (e.g., Soma). (6) (No change.) (7) The inventory record shall indicate whether the inventory is taken as of the opening of business or as of the close of business on the inventory date. If the pharmacy is open 24 hours a day, the opening of business shall be 12:01 a.m. and the close of business shall be 12 midnight. The inventory shall indicate that it is a record of drugs on-hand as of the opening or closing of the business day.
                                              [,with the following exceptions. [(A) In a Class A (Community) Pharmacy that is open 24 hours a day, the inventory record shall indicate the prescription number of the last prescription filled during the inventory. [(B) In a Class C (Institutional) Pharmacy that is open 24 hours a day, the inventory record shall indicate the time the inventory was completed.] (8) The person(s) taking the inventory and the pharmacist-in-charge shall indicate the time the inventory was taken (as specified in paragraph (7) of this subsection) and shall sign and date the inventory with the date the inventory was taken. The signature of the pharmacist-in-charge and the date of the inventory shall be notarized within 72 hours or three working days of the completed initial,
                                                annual, change of ownership and closing
                                                  [controlled substances] inventory. (9) (No change.) (10) The person(s) taking the inventory shall make an estimated count or measure of all substances listed in Schedule III, IV, or V and dangerous drugs
                                                    , unless the container holds more than 1,000 tablets or capsules in which case, an exact count of the contents must be made. (11) The inventory of Schedule I and II controlled substances shall be listed separately from the inventory of Schedule III, IV, and V controlled substances which shall be listed separately from the inventory of dangerous drugs. (12) If the pharmacy maintains a perpetual inventory of any of the drugs required to be inventoried
                                                      [controlled substances], the perpetual inventory shall be reconciled on the date of the inventory. (b) Initial Inventory. (1) A new Class A (Community) pharmacy or Class C (Institutional) pharmacy [that is registered under the Texas and Federal Controlled Substances Acts] shall take an inventory [of all controlled substances on hand] on the opening day of business. Such inventory shall include all stocks (including any out- of-date drugs) of the following: (A) all controlled substances; (B) all dosage forms containing butorphanol (e.g., Stadol); (C) all dosage forms containing nalbuphine (e.g., Nubain); and (D) all dosage forms containing carisoprodol (e.g., Soma). (2) In the event the Class A or C pharmacy commences business with none of the drugs specified in paragraph (1) of this subsection
                                                        [no controlled substances] on hand, the pharmacy shall record this fact as the initial inventory. (3) The initial inventory shall serve as the pharmacy's inventory until the next May 1, or until the pharmacy's regular general
                                                          physical inventory date, at which time the Class A or C Pharmacy shall take an annual
                                                            inventory as specified in subsection (c) of this section.
                                                              [of all controlled substances on hand; the] Such
                                                                inventory may be taken within four days of the specified inventory
                                                                  [this] date and shall include all stocks (including out-of-date drugs). (c) Annual Inventory. (1) A Class A or C pharmacy shall take an inventory [of all controlled substances on hand (including any which are out-of-date)] on May 1 of each year, or on the pharmacy's regular general physical inventory date.
                                                                    [;] Such
                                                                      inventory may be taken within four days of the specified inventory
                                                                        [this] date and shall include all stocks (including out-of- date drugs) of the following: (A) all controlled substances; (B) all dosage forms containing butorphanol (e.g., Stadol); (C) all dosage forms containing nalbuphine (e.g., Nubain); and (D) all dosage forms containing carisoprodol (e.g., Soma). (2) A Class A or C pharmacy applying for renewal of a pharmacy license shall include as a part of the pharmacy license renewal application a statement attesting that an annual [controlled substances] inventory has been conducted, the date of the inventory, and the name of the person taking the inventory. (d) Change of Ownership. (1) A Class A or C pharmacy that changes ownership shall take an inventory of all of the following drugs
                                                                          [controlled substances] on hand (including any [controlled substances] which are out-of-date) on the date of change of ownership :
                                                                            [.] (A) all controlled substances; (B) all dosage forms containing butorphanol (e.g., Stadol); (C) all dosage forms containing nalbuphine (e.g., Nubain); and (D) all dosage forms containing carisoprodol (e.g., Soma). (2)-(3) (No change.) (e) Closed Pharmacies. The pharmacist-in-charge of a Class A or C pharmacy that ceases to operate as a pharmacy shall forward to the board, within 10 days of the cessation of operation, a statement attesting that an inventory of the drugs specified in subsection (c) of this section
                                                                              [controlled substances] on hand has been conducted, the date of closing, and a statement attesting the manner by which the dangerous drugs and
                                                                                controlled substances possessed by such pharmacy were transferred or disposed. (f) Requirements for Class C (Institutional) Pharmacies. (1) (No change.) (2) Annual Inventory. (A) An inventory shall be conducted [of all controlled substances on hand] on May 1 of each year, or on the pharmacy's regular general physical inventory date.
                                                                                  [;] Such
                                                                                    [the] inventory may be taken within four days of the specified inventory
                                                                                      [this] date and shall include all stocks (including out-of-date drugs) of the following: (i) all controlled substances: (ii) all dosage forms containing butorphanol (e.g., Stadol); (iii) all dosage forms containing nalbuphine (e.g., Nubain); and (iv) all dosage forms containing carisoprodol (e.g., Soma). (B) The annual inventory of the institution shall include all of the drugs specified in subparagraph (A) of this paragraph
                                                                                        [controlled substances] on hand in the pharmacy. (C) The inventory of the institution shall be maintained in the pharmacy; if an inventory [of controlled substances] is conducted in other departments within the institution, the inventory of the pharmacy shall be listed separately, as follows: (i) the inventory of drugs
                                                                                          [controlled substances] on hand in the pharmacy shall be listed separately from the inventory of drugs
                                                                                            [the controlled substances] on hand in the other areas of the institution; and (ii) the inventory of drugs
                                                                                              [controlled substances] on hand in all other departments shall be identified by department. (g) Change of pharmacist-in-charge of a pharmacy. (1) On the date of change of the pharmacist-in-charge of a Class A (Community) or Class C (Institutional) pharmacy, an inventory of the following drugs
                                                                                                [controlled substances] shall be taken: (A) (No change.) (B) all dosage forms containing pentazocine (e. g.,
                                                                                                  Talwin); (C) all dosage forms containing phentermine (e. g.,
                                                                                                    Ionamin, Fastin, Adipex-P, etc.); (D) all dosage forms containing diazepam (e g.,
                                                                                                      Valium); (E) all dosage forms containing phendimetrazine ( e.g.,
                                                                                                        Bontril, Plegine, Prelu-2, etc.); (F) all [oral liquid] dosage forms containing codeine; (G) all dosage forms containing hydrocodone (e.g.,
                                                                                                          Tussionex, Tussend, Vicodin, Hycomine, etc.); (H) all dosage forms containing alprazolam (e.g.,
                                                                                                            Xanax); [and] (I) all dosage forms containing triazolam (e. g.,
                                                                                                              Halcion)[.] ; (J) all dosage forms containing butorphanol (e.g., Stadol); (K) all dosage forms containing nalbuphine (e.g., Nubain); and (L) all dosage forms containing carisoprodol (e.g., Soma). (2)-(4) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 3, 1993. TRD-9319719 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 832-0661 All Classes of Pharmacy 22 TAC sec.291.11 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas State Board of Pharmacy or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas State Board of Pharmacy proposes the repeal of sec.291.11 concerning Regulation. The repeal of this section if adopted will eliminate a section of the rules which is no longer necessary because of adoption of other rules. Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary has determined that for the first five-year period the repeal is in effect there will be no fiscal implications as a result of enforcing or administering the repeal. Mr. Brinkley also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal as proposed will be the protection of the health of the citizens of the State of Texas through establishment of standards for pharmacy operations. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed. Comments may be submitted to Fred S. Brinkley, Jr., R.Ph., M.B.A., Texas State Board of Pharmacy, 8505 Cross Park Drive, Suite 110 Austin, Texas 78754-4533. The repeal is proposed under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act. sec.291.11. Regulation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 2, 1993. TRD-9319722 Fred S. Brinkley, Jr., R.Ph., M.B.A Executive Director/Secretary Texas State Board of Pharmacy Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 832-0661 Community Pharmacy (Class A) 22 TAC sec.sec.291.32, 291.34, 291.36 The Texas State Board of Pharmacy proposes amendments to ssec.291.32, 291.34, and 291.36, concerning Personnel, Records, and Class A Pharmacies Compounding Sterile Pharmaceuticals. These amendments if adopted will correct references to rule citations in the Class A Pharmacy rules in conjunction with amendments to the rules relating to inventory requirements. Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary, has determined that for the first five-year period the sections are in effect there will be no fiscal implications as a result of enforcing or administering the sections. Mr. Brinkley also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections as proposed will be the protection of the health of the citizens of the State of Texas through the adoption of rules governing the operation of Class A Pharmacies. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments may be submitted to Fred S. Brinkley, Jr., R.Ph., M.B.A., Texas State Board of Pharmacy, 8505 Cross Park Drive, Suite 110 Austin, Texas 78754-4533. The amendments are proposed under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act; and sec.17(b), which provided the Board with the authority to specify the minimum standards for maintenance of prescription drug records in a pharmacy. sec.291.32. Personnel. (a) Pharmacist-in-charge. (1) General. (A) (No change.) (B) The pharmacist-in-charge shall comply with the provisions of sec.291.17 of this title (relating to [Controlled Substances] Inventory Requirements). (b)-(d) (No change.) sec.291.34. Records. (a)-(f) (No change.) (g) Other Records. Other records to be maintained by the pharmacy: (1)-(5) (No change.) (6) a hard-copy of [controlled substance] inventories required by sec.291.17 of this title (relating to [Controlled Substances] Inventory Requirements); (7)-(10) (No change.) (h)-(j) (No change.) sec.291.36. Class A Pharmacies Compounding Sterile Pharmaceuticals. (a)-(b) (No change.) (c) Personnel. (1) Pharmacist-in-charge. (A) General. (i) (No change.) (ii) The pharmacist-in-charge shall comply with the provisions of sec.291.17 of this title (relating to [Controlled Substances] Inventory Requirements). (B) (No change.) (2)-(4) (No change.) (d) (No change.) (e) Records. (1)-(8) (No change.) (9) Other Records. Other records to be maintained by the pharmacy: (A)-(E) (No change.) (F) a hard-copy of [controlled substance] inventories required by sec.291.17 of this title (relating to [Controlled Substances] Inventory Requirements); (G)-(I) (No change.) (10)-(11) (No change.) (f) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 2, 1993. TRD-9319723 Fred S. Brinkley, Jr., R.Ph., M.B.A Executive Director/Secretary Texas State Board of Pharmacy Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 832-0661 Chapter 303. Destruction of Dangerous Drugs and Controlled Substances 22 TAC sec.303.1, sec.303.2 The Texas State Board of Pharmacy proposes amendments to s303.1 and sec.303.2, concerning Destruction of Dispensed Drugs and Disposal of Stock Prescription Drugs. These amendments if adopted will outline procedures for the destruction of butorphanol (Stadol), nalbuphine (Nubain) and carisoprodol (Soma) and require a pharmacy to maintain a record of destruction of these drugs. Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary has determined that for the first five-year period the sections are in effect there will be no fiscal implications as a result of enforcing or administering the sections. Mr. Brinkley also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections as proposed will be the protection of the health of the citizens of the state of Texas through better control of the destruction of these drugs. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Fred S. Brinkley, Jr., R.Ph., M.B.A., Texas State Board of Pharmacy, 8505 Cross Park Drive, Suite 110, Austin, Texas 78754-4533. The amendments are proposed under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act; and sec.17(b), which provided the Board with the authority to specify the minimum standards for maintenance of prescription drug records in a pharmacy. sec.303.1. Destruction of Dispensed Drugs. (a) (No change.) (b) Drugs Returned to a Pharmacy. A pharmacist, licensed by the board, is authorized to destroy dangerous drugs and controlled substances which have been previously dispensed to a patient and returned to a pharmacy by the patient or an agent of the patient. The following procedures shall be followed in destroying these drugs. (1) Dangerous Drugs other than tripelennamine (e.g.,
                                                                                                                PBZ), butorphanol ( e.g.,
                                                                                                                  Stadol), [and] nalbuphine (e.g.,
                                                                                                                    Nubain) , and carisoprodol (e.g., Soma). (A)-(B) (No change.) (2) Controlled Substances and tripelennamine (e.g.,
                                                                                                                      PBZ), butorphanol ( e.g.,
                                                                                                                        Stadol), [and] nalbuphine (e.g.,
                                                                                                                          Nubain) , and carisoprodol (e.g., Soma). sec.303.2. Disposal of Stock Prescription Drugs. (a) (No change.) (b) Disposal of stock dangerous drugs. A pharmacist, licensed by the board, is authorized to destroy stock dangerous drugs owned by a licensed pharmacy if such dangerous drugs are destroyed in a manner to render the drugs unfit for human consumption; provided, however, the following procedures shall be followed in destroying any brand or dosage form of tripelennamine ( e.g. ,
                                                                                                                            PBZ), butorphanol (e.g.,
                                                                                                                              Stadol), [and] nalbuphine (e.g.,
                                                                                                                                Nubain), and carisoprodol (e.g., Soma). (c) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 3, 1993. TRD-9319720 Fred S. Brinkley, Jr., R. Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 832-0661 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 407. Internal Facilities Management Financial Services 25 TAC sec.sec.407.1-407.6, 407.22-407.24 The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes amendments to sec.sec.407.1-407.6 and ssec.407.22-407.24, concerning standard operating procedures and accounting. The sections would be consolidated as financial services under an undesignated head. The proposed amendments would primarily provide more comprehensive guidelines and uniform procedures for fiscal operations of the department. Clarifying language would be added to sec.sec.407.1-407.6, and sec.sec.407.22-407. 24. The proposed amendments in s407.2 would add provisions concerning the disposal of a deceased client's trust fund when a demand is made. Section 407. 2(d) would be expanded to include two methods of earning interest and would allow for a non- specific period for interest to be prorated. Section 407.3 would require all funds which are required to be deposited in the State Treasury be deposited within three days of receipt. For clarification, the titles of sec.sec.407.22- 407.24 would be changed from Patients Trust Fund to Trust Fund Procedures; Patient Benefit Fund to Benefit Fund Procedures; and Processing Vouchers and Warrants after Death of Payee to Processing Warrants and Vouchers after Death of Payee, respectively. Leilani Rose, director, Financial Services, has determined that there will be no additional fiscal cost to state or local government as a result of administering the amendments as proposed. There will be no significant local economic impact. Ms. Rose also has determined that the public benefit is the more uniform procedures for fiscal operations. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amendments as proposed. Comments on the proposed amendments may be submitted to Linda Logan, Director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The amended sections are proposed under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.407.1. Purpose. This document has been established to provide written guidelines for fiscal operations. The intention is to impart enough information that an employee new to this system will be able to accomplish the tasks they need to perform. Although this manual is not all encompassing, it should provide either the answer to a question or be able to direct an individual to the proper source. These procedures are intended to be a meaningful guide in carrying out the fiscal responsibilities of the Texas Department of Mental Health and Mental Retardation. The procedures for accounting, budgeting, and wage and salary have been developed primarily to provide for uniform procedures of reporting financial data that is accurate, compatible, and comprehensive. Uniform procedures are necessary for effective fiscal control, increased operating efficiency through comparative analysis, support for appropriation requests, and accurate public information. Uniformity of business practices and of accounting, payroll, and budgeting procedures as applied to the departmental operations must be maintained. It is imperative that administrative personnel become familiar with the procedures outlined and comply with them in every respect. Any departure that seems necessary should be explained in writing to the Director, Financial Services, Central Office. In the event questions arise which are not addressed in this document, or cannot be resolved based on accepted business principles and practices, the Director of Financial Services or the Chief of Accounting Systems Management Section, should be consulted.
                                                                                                                                  [Standard operating procedures have been established primarily to cite the principles to be followed in certain areas of administrative concern. The topics in this subcategory may expand on topics referred to in other categories and may likewise be treated in more detail in other subcategories. Standard operating procedures are intended to be a flexible and meaningful guide in carrying out the responsibilities of the Texas Department of Mental Health and Mental Retardation. Each section should be recognized as a part of the whole and should be used in coordination with other sections, as well as with existing statutes and the current appropriation bill. It is intended to be an active guide, to be changed as often as necessary. Suggestions for changes or amendments are invited and will be given most careful consideration]. sec.407.2. Trust Funds and Personal Effects. (a) All funds received at the facility for the personal use of an individual client who has given consent for the facility to administer the client's personal trust funds will have their funds deposited to the client trust fund.
                                                                                                                                    [All funds received for the use or benefit of specific persons shall be considered as patient trust funds. All funds received are subject to any restriction imposed by donor or grantor.] These funds shall be deposited in national or state banks [in the immediate area] that are insured by the Federal Deposit Insurance Corporation[,] or in savings and loan associations domiciled in the State of Texas that are insured by the Federal Savings and Loan Insurance Corporation. (b) At least
                                                                                                                                      [Not less than] 75% of the balance of the total amount held in trust at each facility shall be invested with insured Texas financial institutions [in time deposit certificates, savings accounts, or with the Central Office investment plan. The rate of return and the availability for withdrawal in case of emergency shall be considered in making the selections. As much of the remaining balance that is not required for current distribution should also be invested. Any exception to the minimum investment of 75% for a particular facility must be approved by the deputy commissioner for management and support]. Any remaining balance that is not required for current operations of the trust fund shall also be invested. (c) Each client trust fund account is separately insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation provided that adequate trust fund records are maintained by the facility.
                                                                                                                                        [Subject to maintenance of adequate facility records of patient trust funds, each individual is separately insured by the Federal Deposit Insurance Corporation and the Federal Savings and Loan Insurance Corporation.] This makes it possible to maintain the trust fund balance in one demand deposit account, bank investment account, and/
                                                                                                                                          or savings and loan account. (d) Earnings from the investment of pooled
                                                                                                                                            trust funds are to be prorated
                                                                                                                                              [allocated] to individual client trust fund accounts in one of
                                                                                                                                                the following ways
                                                                                                                                                  [manner]: (1) prorated to each client on an actual interest-earned basis; or
                                                                                                                                                    [For each state fiscal quarter, the interest collected from the investment of client trust funds (including constructive receipt) will be allocated to clients on the basis of the average balance in the account of each client. The average balance will be determined by averaging the monthly balances for the three months of the quarter. The monthly balance should be that of the last day of the month. The allocation process should include all clients who had a balance on the last day of the quarter.] (2) prorated to each client on the basis of the average monthly balance for the period of proration.
                                                                                                                                                      [As the interest for a quarter is collected, it should be accumulated in a special trust fund account to be distributed to the individual client trust fund accounts at the end of the quarter.] [(3) Investment should be planned so that some interest will be collected each month or quarter and so that there will be an equitable allocation of interest to all clients and also an equitable allocation over several fiscal quarters.] (e) When a client dies and there are funds remaining in the client's trust fund, such funds should be disposed of as follows: (1) where no demand is made for disbursement of funds remaining in the deceased client's account, the facility should dispose of such funds in accordance with the Texas Health and Safety Code, sec.551.005. The facility shall hold such funds in the client's trust fund account for a period of three years. If at the end of three years, no demand has been made for disbursement of the funds, the facility shall turn such funds over to the State Treasurer. The State Treasurer shall hold the funds for a period of five years; and if, at the end of that five year period, no demand has been made, the funds shall escheat to the State and shall become a part of the General Fund; (2) where demand is made, the facility may release the deceased client's funds in one of the following ways. (A) The facility shall require the claimant to produce a copy of the small estates affidavit which has been filed in and approved by the probate court and certified by the clerk of said court in order to prove that the claimant has been authorized to collect the assets or a portion of the assets of the deceased client's estate. (B) The facility shall release any remaining trust funds to such guardian. In order to prove that the person claiming the remaining trust funds is the guardian of the deceased client's estate, the facility shall require the claimant to provide letters of guardianship which indicate that the claimant is guardian of the deceased client's estate. (C) The facility shall release any remaining trust funds to the representative appointed by the probate court to administer the estate. The facility shall require the representative to produce testamentary letters or letters of administration in order to prove that the representative has been authorized by the probate court to collect all assets of the deceased client's estate. (D) If the probate court has determined that there is no necessity for administration of the deceased client's estate, the facility shall release any remaining trust funds to the distributees of the deceased client. The facility shall require a claimant to produce the court order refusing application for administration in order to prove that the claimant is collecting the remaining trust funds pursuant to the Texas Probate Code, sec.180. In the event the court order does not set forth the manner in which the assets of the deceased client's estate are to be distributed, the facility shall require the claimant to obtain a court order which shows that the claimant has been determined by the probate court to be a lawful heir of the deceased client's estate. (E) When any questions arise concerning the proper distribution of assets remaining in a deceased client's trust fund, the facility is advised to seek legal counsel. (F) In cases where the remaining funds are $100 or less and the facility feels reasonably sure that the person claiming the funds is the lawful heir and there would probably not be a future dispute over distribution of said funds, the facility may use its discretion as to whether to distribute the funds with the caveat that the release of such funds would be without any legal protection from potential liability by wrongfully distributing assets of the estate. (3) Exceptions. Any funds deposited in a deceased client's trust fund pursuant to a specific trust arrangement or any funds which have been designated for a specific purpose by the facility prior to the death of the client shall be disposed of pursuant to the terms of that arrangement or pursuant to the purpose designated by the facility. Examples would include where funds are specifically set aside by a grantor for funeral expenses or where the facility has designated specific funds prior to the death of the client to be used to pay funeral expenses. (4) In order to comply with the Texas Department of Human Services' rules concerning funds of deceased clients, the facility should, within 45 days after the death, forward a notarized affidavit outlining the disposition of the funds
                                                                                                                                                        [Trust funds and any personal property held by the superintendent for a client who has died, has taken unauthorized departure, been discharged, or furloughed, will be disposed of as directed by Texas Civil Statutes article 3l83c, sec.3]. sec.407.3. Deposit and Investment of Funds. (a) All funds received shall be deposited with the state treasurer or in a national or state bank which is a member of the Federal Deposit Insurance Corporation or in a savings and loan institution which is a member of the Federal Savings and Loan Insurance Corporation. The balance of any bank account must never exceed the FDIC/FSLIC-insured limit unless it is secured by a bank pledge of collateral under the provisions of Texas Civil Statutes, Article 342- 603. All funds which are required to be deposited in the State Treasury must be deposited within three
                                                                                                                                                          [seven] days of receipt. (b)-(f) (No change.) (g) A register of all investments shall be maintained in the office of the business manager/assistant superintendent for administration
                                                                                                                                                            . It shall include a description of each investment, the amount and date, interest due dates, interest paid dates, maturity date, and reinvestment information. The business manager/assistant superintendent for administration
                                                                                                                                                              shall use this register to verify collection of income and principal and to plan the investment program. sec.407.4. Benefit Funds: Use and Control. (a) The Texas Health and Safety Code, sec.551.004, provides that the superintendent /director
                                                                                                                                                                shall be the trustee of a special fund to be designated the benefit fund. The superintendent/director
                                                                                                                                                                  ["He] may expend the monies
                                                                                                                                                                    [moneys] in any such fund for the education or entertainment of the clients of the facility
                                                                                                                                                                      [inmates of the institution,] or for the actual expense of maintaining the fund at the institution.["] (b) The source of benefit funds are: (1) private donations or gifts; (2) interest earned from investment of benefit funds; (3) proceeds, rentals, or commissions received from vending machines; (4) proceeds, rentals, or commissions received from pay station telephones. (c) Except for specific purpose funds, benefit funds may be used only for the purposes of education or entertainment of clients as a body. Each expenditure must be of general benefit to the population of the facility. This does not mean or imply that every client must benefit from each expenditure from the benefit fund. The guiding principle in the expenditure of these funds is that no partiality or preferential treatment is shown individuals or selected groups of clients. Expenditures from benefit funds must be properly documented to show the exact purpose and, if practical, to show the name of the clients benefiting from the expenditure. (d) The following are examples of expenditures that meet the requirement pertaining to education or entertainment: (1) purchase of supplies for a client
                                                                                                                                                                        merit/demerit system; (2)-(6) (No change.) (7) playground equipment, T.V. sets, record players, and
                                                                                                                                                                          stereos, for use by the clients as a whole in the living areas
                                                                                                                                                                            [on the wards or dormitories]; (8) (No change.) (e)-(f) (No change. ) (g) The chaplain fund is a special purpose fund which may be provided for recording contributions at religious services and special gifts designated for such fund by the donor. The following lists indicate the approved source for purchase of chaplaincy equipment and supplies. While most of the items listed in paragraphs (2) and (3) of this subsection would be considered in the categories of "education or entertainment" under the procedure for handling benefit funds, the proper handling of a chaplain's fund must be based on the understanding by the donors that the funds will be used for the purposes which are listed. Expenditures from the fund should be limited to the items on the list which have been approved by the chaplains, the advisory committee, or the chaplain coordinator. (1) [Necessary] Items
                                                                                                                                                                              [items] to be provided by the facility: (A)-(L) (No change.) (M) public address
                                                                                                                                                                                [PA] system; (N) (No change.) (O) counseling room for living areas
                                                                                                                                                                                  [on each ward]; (P) (No change.) (2) Items to be provided by facility if current appropriations are available
                                                                                                                                                                                    [Very helpful items to be provided by facility funds, if available,] or through donations to Protestant or Catholic chaplain's fund. Items in paragraph (1) of this subsection are also included here if current appropriations are not available: (A)-(B) (No change.) (C) religious books for medical and client
                                                                                                                                                                                      [patient] libraries; (D)-(I) (No change.) (J) pianos for living areas
                                                                                                                                                                                        [dayrooms and dorms]; (K)-(M) (No change.) (N) small hymnals for living areas
                                                                                                                                                                                          [ward and dorm services]; (O)-(P) (No change.) (Q) communication system for religious broadcasts to clients
                                                                                                                                                                                            [patients]; (R)-(T) (No change.) (3) Important items for chaplaincy ministry cannot be the responsibility of the facility and must come from the
                                                                                                                                                                                              Protestant or Catholic chaplain's fund or other types of gifts (most of the following items become the property of clients): (A) Bibles and New Testaments (Roman Catholic and Protestant -
                                                                                                                                                                                                [) (]Spanish and English); (B)-(U) (No change.) (h) In accordance with approved procedures, all receipts should be deposited in a bank account and all expenditures should be made by check signed by the business manager/assistant superintendent for administration
                                                                                                                                                                                                  or administrator and countersigned by the superintendent [or ]/
                                                                                                                                                                                                    director or designees
                                                                                                                                                                                                      . Approved purchasing procedures applicable to other funds should be adhered to in every respect. (i) The actual expense of maintaining benefit funds may include expenditures to cover administrative errors which arise in the administration or disbursement of benefit funds and trust funds, provided the following restrictions are met: (1)-(6) (No change.) (7) employees responsible for administrative errors in the administration or disbursement of benefit funds and trust funds may be subject to disciplinary action as described in the department's Personnel Operation Instruction, 406-3
                                                                                                                                                                                                        [under sec.3.112-4 (relating to Dismissal for Cause) of the Personnel Manual]. sec.407.5. Mail Opening Procedures. (a) Control of incoming monies. All mail addressed to the offices of cashier, claims, trust fund, canteen, business manager/assistant superintendent for administration
                                                                                                                                                                                                          , accounting, and sheltered workshop, except mail marked "personal" or "confidential," shall be opened centrally by two employees, one of whom
                                                                                                                                                                                                            [which] shall be the designated cashier
                                                                                                                                                                                                              [an employee of the cashier's office]. The purpose of the central mail opening procedure is to maintain control over incoming monies. Employees of these offices shall have the right to be present when mail addressed to them by name is opened. (b) Mail addressed to the superintendent/director
                                                                                                                                                                                                                . All mail addressed to the superintendent/director
                                                                                                                                                                                                                  which obviously contains monies, such as checks from the Social Security Administration, should be opened through the central mail opening procedure. All other mail addressed to the superintendent/director
                                                                                                                                                                                                                    shall be delivered to his office unopened. (c) Employee mail. Generally, all mail addressed to all other employees shall be delivered unopened to the individuals. Employees should not have personal mail addressed to facility unless living on grounds. (d) Authority to open mail. The superintendent/director shall maintain authority to open any mail addressed to an employee, office or section of the facility (except personal mail to employees
                                                                                                                                                                                                                      [an employee] living on the grounds or their
                                                                                                                                                                                                                        [his] family or mail marked "personal" or "confidential") when such action may be deemed in the best interest of the facility to maintain fiscal control over monies belonging to the facility , clients
                                                                                                                                                                                                                          [or residents] or to control contraband. Mail addressed to an employee (except that indicated in subsection (a) of this section) shall be opened only in the presence of the employee. The indiscriminate opening of an employee's mail on a routine basis will not be condoned. (e) (No change.) (f) Client mail. (1) All client mail shall be delivered unopened to the client, except as currently provided in departmental rules relating to mail opening procedures
                                                                                                                                                                                                                            [Chapter 405, Subchapter M (relating to Mail Opening Procedures)]. (2) Families of the resident
                                                                                                                                                                                                                              clients [of the facilities] shall be informed that the facility is not responsible for funds mailed directly to the client. They should also be informed of the availability of the trust fund as a method of protecting personal funds for the client. Families should be advised to send all monies, either checks or cash, to the cashier and
                                                                                                                                                                                                                                [,] not to department
                                                                                                                                                                                                                                  [individual departmental or ward] employees. sec.407.6. Commercial Solicitation on Grounds. Commercial solicitation on the grounds of the state facility shall be only in accordance with the instruction and direction established by the superintendent/director
                                                                                                                                                                                                                                    . Such solicitation should be at times and places specifically authorized for that special area of concern. For instance, general salesmen should be directed to the purchasing and supply office. Drug salesmen should be given instructions as to what times and at what places they may meet with the formulary committee or the pharmacist. Employees are to be reminded
                                                                                                                                                                                                                                      [It is important, however, that salesmen should not be allowed to wander freely throughout the grounds or wards. In this regard it is important to remind employees of the facility] that they are prohibited by law from accepting gifts from salesmen or others. If such gifts are offered, they must either be rejected or handled as any other donated item to the facility. sec.407.22.[Patients] Trust Fund Procedures. (a) Amounts received for benefit of clients specified by name are recorded in patients trust fund accounts. A subsidiary ledger account
                                                                                                                                                                                                                                        [sheet] is established for each client and any restriction imposed by the donor is recorded on that ledger account
                                                                                                                                                                                                                                          [sheet]. Each receipt or disbursement is posted to that ledger account
                                                                                                                                                                                                                                            [sheet]. Funds received for the general use of clients are considered as patient benefit funds. (See [Directive 2.7, also known as] s407.23 of this title (relating to [Patient] Benefit Fund Procedures
                                                                                                                                                                                                                                              ). (1) (No change.) (2) Disbursements from patient trust funds are made for canteen merchandise coupons, cash withdrawals
                                                                                                                                                                                                                                                given to client and cash given to an employee to make an authorized purchase for a client or pay a client debt. The request for disbursement is approved by the subsidiary ledger clerk as to availability of funds and absence of donor restrictions; the cashier then
                                                                                                                                                                                                                                                  makes the disbursement and secures supporting documentation. (A) If cash is given to the client the client may sign beside an entry on the
                                                                                                                                                                                                                                                    [a] list of disbursements. When authorized purchases are made for a client, sales slips, receipted bills, or other vouchers signed by the client (
                                                                                                                                                                                                                                                      or two employees acting for the client)
                                                                                                                                                                                                                                                        are secured, posted to the subsidiary ledger, and filed in support of the check voucher in the same manner as cash receipts are filed with the cash voucher. (B) A cash withdrawal request list or a canteen merchandise coupon request list may be prepared for several clients and the total disbursed by the cashier to an authorized employee. This
                                                                                                                                                                                                                                                          [Such] list shall provide space for the client's signature or mark. Two employees shall act as a team in making disbursements and shall sign a certification on the list, that the monies
                                                                                                                                                                                                                                                            [moneys] or coupons listed were disbursed to the payees on the date shown. The disbursing team members shall be rotated frequently. If the superintendent/director
                                                                                                                                                                                                                                                              desires that a
                                                                                                                                                                                                                                                                [the] caseworker be a permanent member of the team, the second team member shall be rotated. (3) Funds are deposited and invested in accordance with [Directive 1. 16, also known as] sec.407.2 of this title (relating to Trust Funds and Personal Effects) and [Directive 1.18, also known as] sec.407.3 of this title (relating to Deposit and Investment of Funds). Earnings from investment of funds are deposited to the each client's trust fund account
                                                                                                                                                                                                                                                                  [patient benefit fund]. (4) Control accounts for patient trust funds are 1113xxx0
                                                                                                                                                                                                                                                                    [1195-XXX0- 00], Patient Trust Fund, and 23110000
                                                                                                                                                                                                                                                                      [1381-0000-00], Patients
                                                                                                                                                                                                                                                                        Trust Fund Payable. The balances of these accounts must equal the total of all subsidiary ledger accounts at the
                                                                                                                                                                                                                                                                          close of business each month. (b) When a client leaves a facility, the balance in his /her
                                                                                                                                                                                                                                                                            trust fund is refunded. If the
                                                                                                                                                                                                                                                                              refund check is outstanding for four months, a request that the check be cashed shall be sent to the payee. If no reply is received after one additional month, a "stop-pay" order shall be issued and the amount restored to the trust fund account. [To avoid accumulating inactive account sheets throughout the ledger, the accountant may establish an "inactive" sheet in the back of the ledger, with a single line for each inactive account, showing client name and amount. Total inactive accounts must be included in balancing to control accounts.] (c) The trust fund clerk reviews all inactive accounts at least once a year and furnishes the chief accountant with
                                                                                                                                                                                                                                                                                a list of all applicable account balances for escheat to the state under provisions of current statutes. At this time, all balances subject to escheat to the state shall be processed as follows: (1) identify all accounts held for former clients are deceased
                                                                                                                                                                                                                                                                                  [who have been dead], on unauthorized leave, discharged, or furloughed for a period
                                                                                                                                                                                                                                                                                    longer than three years; (2) mail a letter to the last known address of the client or to donor.
                                                                                                                                                                                                                                                                                      [if last known address of the client is not available, advising] This letter should advise
                                                                                                                                                                                                                                                                                        that the money will be escheated to the state treasurer if not claimed within 10 days; (3) at least 10 days before turning the funds over to the state treasure, post
                                                                                                                                                                                                                                                                                          [Post] a list of clients' names and funds to be escheated in the hall of the administration building of the facility[, stating the pending action, at least 10 days before turning funds over to the state treasurer]. (d) Trust fund ledger entries shall include descriptions or codes indicating source of funds and purpose of disbursements. sec.407.23. [Patient] Benefit Fund Procedures.
                                                                                                                                                                                                                                                                                            Any donation of funds to clients not listed by name, plus funds earned from investment of [patient trust funds and funds earned from investment of the] benefit fund, is recorded in account 45010000
                                                                                                                                                                                                                                                                                              [1102-XXXX-XX], Patient Benefit Fund Revenue
                                                                                                                                                                                                                                                                                                . Revenues from vending machines and pay phones located on the facility are deposited to this fund when not required to maintain the authorized canteen revolving fund balance, except that if the canteen is operated through contract with the Texas Commission for the
                                                                                                                                                                                                                                                                                                  Blind [Commission], the operator of the canteen is entitled to the vending machine revenues. Reference the department's Fiscal Manual
                                                                                                                                                                                                                                                                                                    [sec.401.43 of this title (]relating to Vending Machines and Pay Telephones[)]. (1) Funds are deposited and invested in accordance with [Directive 1.18, also known as] sec.407.3 of this title (relating to Deposit and Investment of Funds). (2) Acceptable expenditures from these funds are described in [Directive 1.20, also known as] sec.407.4 of this title (relating to Benefit Funds: Use and Control). Except when specifically donated for other purposes, funds are only expended for education or entertainment of clients. All purchases are made under procedures approved by the State Purchasing and General Services Commission contained in the department's Purchasing and Supply Operating Instruction, 407-2
                                                                                                                                                                                                                                                                                                      [Supply Manual]. All cash disbursement vouchers must be supported by paid receipts. (3) (No change.) sec.407.24. Processing 23>Warrants [Vouchers] and Vouchers [Warrants] after Death of Payee. (a) In the event that a person who had provided goods or services to the state dies before having executed the purchase voucher for payment for those goods or services, another person may complete the form. The business manager/assistant superintendent for administration
                                                                                                                                                                                                                                                                                                        of the
                                                                                                                                                                                                                                                                                                          [a] facility, the spouse of the deceased, or other responsible party may complete a purchase voucher for goods or services furnished to the state, by adding a statement such as "prepared from records of the deceased." (b) The business manager/assistant superintendent for administration
                                                                                                                                                                                                                                                                                                            must be satisfied
                                                                                                                                                                                                                                                                                                              [satisfy himself] that the claimant to a warrant drawn to the estate of the deceased
                                                                                                                                                                                                                                                                                                                [a deceased payee] is entitled to the warrant before releasing the warrant. (c) A warrant payable to the estate of the deceased
                                                                                                                                                                                                                                                                                                                  [a deceased payee] is payable by the state treasurer as follows. (1) If endorsed by the administrator, a copy of the court certificate of appointment must be attached and accompany the warrant to the state treasurer's office. (2) If endorsed by the payee's heirs, an affidavit shall be signed by two reputable persons stating that the endorsers are the sole surviving heirs, and are all of age and competent to act for themselves. This affidavit shall be attached and accompany the warrant to the state treasurer's office. (3) If endorsed by the guardian of an heir, the warrant shall have a certified copy of the court certificate of guardianship attached when presented to the state treasurer's office for payment. (4) One of the heirs may endorse the warrant, attaching a power of attorney or certified copy thereof, signed by all of the remaining heirs. The power of attorney shall state that the signers are the sole surviving heirs and are all of age and competent. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 3, 1993. TRD-9319792 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 465-4670 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 334. Underground and Aboveground Storage Tanks Subchapter H. Interim Reimbursement Program 31 TAC sec.sec.334.301, 334.302, 334.305, 334.308, 334.309, 334. 310, 334.315, 334.317, 334.322 The Texas Water Commission (Commission) proposes amendments to sec.sec.334. 301, 334.302, 334.305, 334.308, 334.309, 334.310, 334.315, 334.317, and 334. 322, concerning interim reimbursement provisions of the Commission's Petroleum Storage Tank Program. The proposed amendments to sec.334.301 would provide a severability clause which would have the effect of severing from the entire subchapter any invalid provisions. The proposed amendments to sec.334.302 would clarify existing language in the rule and reflect the commission's impending adoption of Reimbursable Cost Guidelines. The proposed amendments to sec.334.305 would correct a reference to the mailing address of the commission and clarify existing language. The proposed amendments to sec.334.308 would change the title of the section to read "Allowable Costs and Restrictions on Allowable Costs;" would renumber and revise sec.334.308(d), (e), and (f) to make these subsections read more clearly; would eliminate sec.334.308 (g) and (h) since the language in subsections (g) and (h) is repeated in new subsections (d) and (e); would clarify existing language; would provide that subsection (c) is applicable unless otherwise specified in new sec.334.308(f) which contains restrictions on allowable costs; would update the term "free-product" to "phase-separated product" to reflect common industry usage; would provide that prior to March 12, 1993, costs associated with the removal of piping, pumps and dispensers associated with tanks would be allowable; and would provide that tank removals and permanent abandonment of tanks in place performed prior to March 12, 1993, would be allowable costs. The most significant change in sec.334.308 is that costs of tank removals and abandonment of tanks in place performed on or after March 12, 1993, will not be reimbursable under the commission's reimbursement program. The Petroleum Storage Tank Remediation Fund (PSTR) was established to allow small business owners and operators to continue to operate in light of the United States Environmental Protection Agency's requirement that tank owners maintain financial assurance of $1,000,000 per release occurrence. If tank removals are included as allowable costs, the commission estimates that the demand on the PSTR fund would exceed $75 million per year (figure based on projected number of tank removals per year without regard to balance of fund at any point in time). When it reimbursed costs for tank removals, the commission went beyond what the legislature required since the PSTR Fund was established to reimburse owners and operators for costs of corrective action. In order to preserve the viability of the PSTR Fund, reimbursements must be limited to those costs which are actually necessary and related to corrective action. Tank removals are not direct costs of corrective action. By eliminating tank removals, the commission will also be eliminating an existing disparity between tank owners who have a release and those who do not. Under the existing rules, only those tank owners who have release occurrences can apply to the commission for reimbursement for the tank removal costs. Tank owners who have not had releases are ineligible under the PSTR fund. Additional amendments have been made to existing sec.334.308(e), (f), (g), and (h) which combine and revise the language in those provisions to create new subsections (d), (e), and (f) which relate to hydraulic fluid, spent oil, and restrictions on allowable costs, respectively. The proposed amendments to sec.334.309 would reflect the commission's impending adoption of Reimbursable Cost Guidelines. The proposed amendments to sec.sec.334.310, 334.315, and 334.317 would clarify existing language in the rule. The proposed amendments to sec.334.322 would make the rule read more clearly and would add definitions for the terms abate, commingled substance, corrective action plan, emergency and tank removal. Stephen Minick, Division of Budget and Planning, has determined that for the first five years this section is in effect there will be fiscal implications as a result of enforcement or administration of the section. The effects on state government will be cost savings in the Petroleum Storage Tank Remediation Fund. For the most part, this section will incorporate into rule those policies for determination of reasonable cost of storage tank remediation which are currently in place. The actual savings to be realized from adoption of reimbursement cost guidelines in general is dependent on the specific reimbursement requests made prospectively and cannot be determined with accuracy at this time. The most significant effect of this proposal, however, relates to the change in policy for reimbursement of the costs of removing contaminated tanks during the corrective action process. Approximately 5,300 tank removal projects are anticipated to be undertaken in 1993, of which approximately 3,300 (or 62%) will involve leaking tanks potentially eligible for reimbursement under existing policy. The average cost anticipated for an average site with three tanks is approximately $22,600. The total reduction in obligations against the fund associated with tank removals is approximately $74,580,000 annually for the estimated 3,300 tank sites. The cost to the owner/operator removing contaminated tanks from a typical site would be equivalent to the anticipated savings to the state of $22,600. The costs for sites with fewer or greater numbers of tanks would vary proportionally. Cost savings realized will enable the commission to maximize the use of remediation funds for site cleanups and address the largest number of priority cases of contamination. No direct effects on local governments are anticipated other than those effects that occur due to ownership or operation of tanks. These effects would be the same as for any private tank owner/operator. Local governments will benefit generally from the commission's more efficient use of funds by having available the maximum amount of revenue from which to make requests for reimbursement. Any business requesting reimbursement for cleanup costs may realize some effects of the use of these cost guidelines, but, with the exception of tank removals, these are not anticipated to affect claims approvals significantly more than current practices. Mr. Minick also has determined that for the first five years this section is in effect the public benefit anticipated as a result of enforcement of and compliance with the section will be more effective use of public funds for remediation of actual or potential threats to groundwater or surface water, enhanced protection of the public health and water quality and improved enforcement of the commission's authority regarding remediation of leaking petroleum storage tanks. Small businesses will be affected on the same basis and to the same extent as a larger concern. There are no additional costs anticipated to persons required to comply with this section as proposed. Comments on the proposal may be submitted to Michael Bame, Petroleum Storage Tank Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711-3087. Comments will be accepted until 5 p.m. for a period of 30 days following the date of this publication. Public meetings will be held to receive public comment. The amendments are proposed under authority of House Bill 1588 (71st Legislature, 1989) and House Bill 1214 (72nd Legislature, 1991), which require the Commission to establish a groundwater protection program, and to implement a reimbursement program to responsible parties who cleanup sites on their own initiative and the Texas Water Code (Code), sec.5.103 and sec.5.105, which provides the Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Code and other laws of the State of Texas, and to establish and approve all general policy of the Commission. sec.334.301. Applicability of this Subchapter. (a)-(g) (No change.) (h) If any section, subsection, paragraph, subparagraph, clause, or subclause of this subchapter is held invalid, such invalidity shall not affect any other section, subsection, paragraph, subparagraph, clause, or subclause which can be given effect without the invalid provision, and to this end the provisions of this subchapter are declared to be severable. sec.334.302. General Conditions and Limitations Regarding Reimbursement- Interim Period. (a)-(c) (No change.) (d) No expenses for which reimbursement is claimed under this subchapter and no expenses which are to be applied to the owner/operator contribution shall be subject to reimbursement or applied to the owner/operator contribution unless the following conditions have been met. (1)-(5) (No change.) (6) The allowable costs for which reimbursement is sought and those which are to be applied to the owner/operator contribution must be reimbursable [reasonable], as defined in sec.334.309 of this title (relating to Reimbursable
                                                                                                                                                                                                                                                                                                                    [Reasonable] Costs-Interim Period). (7) (No change.) (e)-(g) (No change.) (h) Nothing in this
                                                                                                                                                                                                                                                                                                                      [these] subchapter shall be construed to create an entitlement to monies in the petroleum storage tank remediation fund or any other fund, and the commission reserves the right to amend or repeal without limitation
                                                                                                                                                                                                                                                                                                                        any [and all] of the
                                                                                                                                                                                                                                                                                                                          provisions of this subchapter, including [without limitation], provisions regarding eligibility and allowable costs. (i)-(l) (No change.) sec.334.305. Where and How Documents Must be Filed-Interim Period. (a) Any application for reimbursement or claim for payment filed pursuant to this subchapter shall be filed as follows: (1) the original application and one complete copy, plus any fees and registration information required pursuant to s334.310(a) of this title (relating to Requirements for Eligibility-Interim Period) submitted to: Texas Water Commission, P.O. Box 13087, Austin, Texas 78711-3087, Attention: Petroleum Storage Tank Division, Reimbursement Section
                                                                                                                                                                                                                                                                                                                            [Claims]; (2) (No change.) (b)-(c) (No change.) (d) The date of filing documents with the chief clerk or the commission on protested claims for payment shall be controlled by this subchapter and the procedural rules of the commission
                                                                                                                                                                                                                                                                                                                              [Chapters 261, 263, 265, 267, 269, and 273 of this title (relating to Introductory Provisions; General Rules; Procedures Before Public Hearing; Procedures During Public Hearing; Procedures After Public Hearing Before a Hearings Examiner; Procedures After Public Hearing Before the Full Commission; and Procedures After Final Decision), to the extent applicable]. sec.334.308. Allowable Costs and Restrictions on Allowable Costs-Interim Period. (a)-(b) (No change.) (c) Unless otherwise specified in sec.334.308(f),
                                                                                                                                                                                                                                                                                                                                allowable costs shall include, but not be limited to, the following: (1) (No change.) (2) removal of phase-separated
                                                                                                                                                                                                                                                                                                                                  [free] product; (3) (No change.) (4) collection and analysis of surface and subsurface soil and water, phase-separated
                                                                                                                                                                                                                                                                                                                                    [free] product, and vapor samples; (5) (No change.) (6) removal, storage, treatment, recycling, transport, and disposal of phase-separated
                                                                                                                                                                                                                                                                                                                                      [free] product, sludges, vapors, contaminated soils, contaminated water and other wastes and contaminated articles, in accordance with applicable laws; (7)-(9) (No change.) (10) design of plans for site assessment and remediation; (11) acquisition, installation, startup, operation, and maintenance of [site assessment and] remediation systems, including monitoring; (12) removal, transport, and disposal of the piping, pumps, and dispensers associated with the underground or aboveground tank when removed after October 1, 1992 and before May 21, 1993; (13)
                                                                                                                                                                                                                                                                                                                                        [(12)] tank
                                                                                                                                                                                                                                                                                                                                          removal (as defined in this subchapter) and
                                                                                                                                                                                                                                                                                                                                            , transport, and disposal of the components of the underground or aboveground tank, excluding associated piping, pumps, and dispensers, in accordance with applicable law when connected with a corrective action measure and performed before May 21, 1993
                                                                                                                                                                                                                                                                                                                                              ; (14)
                                                                                                                                                                                                                                                                                                                                                [(13)] permanent abandonment in place of a tank system where abandonment in place rather than tank system removal is deemed by the executive director to be necessary to avoid destruction of substantial or significant surface improvements and conducted before May 21, 1993
                                                                                                                                                                                                                                                                                                                                                  ; (15)
                                                                                                                                                                                                                                                                                                                                                    [(14)] temporary relocation of utility structures when necessary to the performance of corrective action; (16)
                                                                                                                                                                                                                                                                                                                                                      [(15)] preparation of technical reports required pursuant to the requirements of Subchapter D of this chapter (relating to Reporting of Releases and Corrective Action); (17)
                                                                                                                                                                                                                                                                                                                                                        [(16)] the fair market value of access to property outside of the facility boundaries where such access is necessary for the performance of corrective action; (18)
                                                                                                                                                                                                                                                                                                                                                          [(17)] the reasonable value of necessary time spent by the applicant in planning and administering his own corrective action plan; (19)
                                                                                                                                                                                                                                                                                                                                                            [(18)] performance of any corrective action measure which is specifically required by an order of the Commission or a written request or confirmation of the executive director on or after September 1, 1987; (20)
                                                                                                                                                                                                                                                                                                                                                              [(19)] state and federal sales taxes applicable to items which are otherwise allowable costs under this section; and (21)
                                                                                                                                                                                                                                                                                                                                                                [(20)] any other costs determined by the executive director to be allowable in accordance with the provisions of this subchapter. (d) The costs of abatement or corrective action taken in response to a release of hydraulic fluid from a hydraulic lift system are allowable costs in situations where: (1) a release of hydraulic fluid occurs near the location of a release of petroleum products from a petroleum storage tank; (2) the hydraulic fluid was released from a hydraulic lift system located at a vehicle service and fueling facility where the hydraulic lift system was used in conjunction with and contemporaneously with a vehicle service and fueling facility; and (3) upon request by the executive director, the eligible owner or operator demonstrates that a release from the hydraulic lift system is not mixed with any substance except for petroleum products from a petroleum storage tank system or another substance that was contained in the hydraulic lift system owned or operated by the person claiming reimbursement. (e) The costs of abatement or corrective action taken in response to a release of spent oil from a spent oil tank are allowable costs in situations where: (1) a release of spent oil occurs near the location of a release of petroleum products from a petroleum storage tank; (2) the spent oil was released from a spent oil tank located at a vehicle service and fueling facility where the spent oil tank was used in conjunction with and contemporaneously with a vehicle service and fueling facility; and (3) upon request by the executive director, the eligible owner or operator demonstrates that a release of spent oil is not mixed with any substance except for petroleum products from a petroleum storage tank system or another substance that was contained in the spent oil tank owned or operated by the person claiming reimbursement. [(e) The costs of abating the release from the petroleum storage tank and the costs of removal, transport and disposal of the petroleum storage tank, including (on or after October 1, 1992) associated piping, pumps and dispensers, are the only allowable costs in situations where: [(1) a release of a petroleum product from a petroleum storage tank occurs near the location of a release of any other substance other than hydraulic oil from a hydraulic lift system or spent oil from a motor vehicle, located at a vehicle service and fueling facility; and [(2) the contamination from the substance which is a petroleum product could not reasonably be remediated under a separate and distinct corrective action plan from the substance which is not a petroleum product. [(f) The costs of abating the release from the hydraulic lift system and the costs of removal, transport and disposal of the tank, including (on or after October 1, 1992) associated piping and equipment, are the only allowable costs in situations where: [(1) a release of hydraulic fluid occurs near the location of a release of any other substance other than: [(A) petroleum products from a petroleum storage tank; [(B) spent oil from a tank located at a vehicle service and fueling facility; or [(C) another substance which the claimant can prove was contained in the hydraulic lift system; and [(2) the contamination from the substance which is a hydraulic fluid could not reasonably be remediated under a separate and distinct corrective action plan from the substance which is not a hydraulic fluid. [(g) The costs of abating the release from the spent oil tank and the costs of removal, transport and disposal of the tank, including (on or after October 1, 1992) associated piping and equipment, are the only allowable costs in situations where: [(1) a release of spent oil occurs near the location of a release of any other substance other than: [(A) petroleum products from a petroleum storage tank; [(B) hydraulic fluid from a hydraulic lift system; or [(C) another substance which the claimant can prove was contained in the spent oil tank; and [(2) the contamination from the substance which is a spent oil could not reasonably be remediated under a separate and distinct corrective action plan from the substance which is not a spent oil. [(h) In addition to other requirements, no corrective action costs connected with the release of spent oil shall be allowable unless the spent oil was released from a tank located at a vehicle service and fueling facility, nor shall any costs connected with the release of hydraulic fluid be allowable unless the hydraulic fluid was released from a hydraulic lift system located at a vehicle service and fueling facility. The spent oil tank and/or hydraulic lift system must have been used in conjunction with and contemporaneously with a vehicle service and fueling facility.] (f)
                                                                                                                                                                                                                                                                                                                                                                  [(d)] The following types of costs are those which will not be considered allowable costs under this subchapter: (1)-(2) (No change.) (3) removal, transport, and disposal of the piping, pumps, and dispensers associated with the underground or aboveground tank when removed prior to October 1, 1992, or on or after March 12, 1993; (4) tank removal (as defined in this subchapter) and, transport, and disposal of the components of the underground or aboveground tank, excluding associated piping, pumps, and dispensers, when performed on or after March 12, 1993; (5) permanent abandonment in place of a tank system where abandonment in place rather than tank system removal is deemed by the executive director to be necessary to avoid destruction of substantial or significant surface improvements when conducted on or after March 12, 1993; (6)
                                                                                                                                                                                                                                                                                                                                                                    [(4)] loss of income or profits, including without limitation, the loss of business income arising out of the review, processing, or payment of an application or request for assistance under this subchapter; (7)
                                                                                                                                                                                                                                                                                                                                                                      [(5)] decreased property values; (8)
                                                                                                                                                                                                                                                                                                                                                                        [(6)] bodily injury or property damage; (9)
                                                                                                                                                                                                                                                                                                                                                                          [(7)] attorney's fees; (10)
                                                                                                                                                                                                                                                                                                                                                                            [(8)] any costs associated with preparing, filing, and prosecuting an application for reimbursement or assistance under this subchapter; (11)
                                                                                                                                                                                                                                                                                                                                                                              [(9)] the costs of making improvements to the facility beyond those that are required for corrective action; (12)
                                                                                                                                                                                                                                                                                                                                                                                [(10)] costs associated with corrective action performed for any purpose where no release of petroleum above action levels is discovered, except when the corrective action has been ordered by the Commission; (13)
                                                                                                                                                                                                                                                                                                                                                                                  [(11)] costs of compiling and storing records relating to costs of corrective action; (14)
                                                                                                                                                                                                                                                                                                                                                                                    [(12)] costs of corrective action taken in response to the release of a substance which is not a petroleum product as defined in sec.334.322 of this title (relating to Subchapter H Definitions); (15)
                                                                                                                                                                                                                                                                                                                                                                                      [(13)] costs of tank integrity testing when it is not specifically required by this chapter, requested by the executive director, or ordered by the Commission; (16)
                                                                                                                                                                                                                                                                                                                                                                                        [(14)] costs of any corrective action incurred by an owner or operator on or after the date that the executive director commences corrective action at the owner's or the operator's facility pursuant to sec.334. 321 of this title (relating to Corrective Action by the Commission-Interim Period), unless authorized in writing by the executive director; (17)
                                                                                                                                                                                                                                                                                                                                                                                          [(15)] costs incurred as a result of a release from a storage tank system owned, operated, or maintained by a common carrier railroad; (18)
                                                                                                                                                                                                                                                                                                                                                                                            [(16)] any activities, including those required by this chapter, which are not conducted in compliance with applicable state and federal environmental laws or laws relating to the transport and disposal of waste; [and] (19)
                                                                                                                                                                                                                                                                                                                                                                                              [(17)] interest on the monies expended for an item of corrective action; and
                                                                                                                                                                                                                                                                                                                                                                                                [.] (20) the cost of abatement or corrective action taken in response to a release of a commingled substance as that term is defined in sec.334.322 of this title (relating to Subchapter H Definitions), excluding subsections (d) and (e) of this subsection. sec.334.309. Reimbursable [Reasonable] Costs-Interim Period. (a) For purposes of this subchapter, "Reimbursable
                                                                                                                                                                                                                                                                                                                                                                                                  [Reasonable] Cost" means that amount or range which is commensurate with the level of corrective action necessary to assess and remediate a site, as determined by the executive director, based on an evaluation of technical effectiveness and cost effectiveness as well as typical costs expected for the particular corrective action under review, with respect to the necessary or required scope and complexity of the action. (b) No cost shall be reimbursed
                                                                                                                                                                                                                                                                                                                                                                                                    [is reasonable] unless it is also an allowable cost pursuant to sec.334.308 of this title (relating to Allowable Costs-Interim Period). sec.334.310. Requirements for Eligibility-Interim Period. (a) In order for a person to be an eligible owner or operator under this subchapter the following requirements must be met. (1) He/she must meet the other requirements of this chapter and must be: (A)-(E) (No change.) (F) an adjacent landowner who can clearly prove that the land has been contaminated by a release of petroleum products from a tank described in subparagraph (A) of this paragraph which is not located on said land, and who performed corrective action in response to a release of petroleum products from such tank, and either: (i) (No change.) (ii) committed to undertake the entire cleanup of the leak and contamination from the tank on his property and on all other property by: (I) (No change.) (II) performing a site assessment to define the extent of the vertical and horizontal contamination at the time of the agreement; (III)-(IV) (No change.) (2)-(4) (No change.) (b)-(e) (No change.) (f) Unless otherwise approved by the executive director, all corrective action
                                                                                                                                                                                                                                                                                                                                                                                                      [remedial] activities, including activities
                                                                                                                                                                                                                                                                                                                                                                                                        proposed in corrective action plans,
                                                                                                                                                                                                                                                                                                                                                                                                          must be approved in writing by the executive director prior to implementation [of the plan]. For reimbursement of emergency, initial abatement measures and phase- separated product recovery as required by sec.334.77 of this title (relating to Initial Abatement Measures and Site Check), approval by the executive director is not required prior to implementation, unless the emergency action extends beyond 48 hours, then written approval will be required for all activities with the exception of continuous phase-separated product recovery. sec.334.315. Protest of Fund Payment Report-Interim Period. (a) -(c) (No change.) (d) The applicant and the staff of the executive director shall attempt to resolve any disputes over the fund payment report informally. If no resolution is reached by the staff and the applicant [within 45 days of the date on which the executive director receives a protest], the applicant may file a petition requesting the commission to grant relief. The petition shall be filed within 45 days of the last informal fund protest meeting. sec.334.317. Hearing by the Commission-Interim Period. Following receipt of a petition, the commission shall conduct a hearing on the petition. [To the extent applicable,] T
                                                                                                                                                                                                                                                                                                                                                                                                            [t]he proceedings [before, during, and after the hearing] shall be governed by the rules of the commission
                                                                                                                                                                                                                                                                                                                                                                                                              [Chapters 261, 263, 265, 267, 269, and 273 of this title (relating to Introductory Provisions; General Rules; Procedures Before Public Hearing; Procedures During Public Hearing; Procedures After Public Hearing Before a Hearings Examiner; Procedures After Public Hearing Before the Full Commission; and Procedures After Final Decision)]. sec.334.322. Subchapter H Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Abate-To reduce in sufficient degree or intensity the source of the release and potential fire, explosion, or vapor hazards such that immediate threats to human health no longer exist. This includes the removal of all regulated substances from the aboveground or underground tank, and the removal of phase-separated products. Application preparer -[As used in this subchapter, means] A
                                                                                                                                                                                                                                                                                                                                                                                                                ny person responsible for preparing the application for reimbursement. Commingled substance -A combination or mixture of a petroleum product and a non-petroleum product. Contract of subrogation-[As used in this subchapter, means] A
                                                                                                                                                                                                                                                                                                                                                                                                                  document of agreement between the executive director and the eligible tank owner and operator which authorizes the executive director to recover costs reimbursed from persons who performed corrective action activities at LPST sites. Corrective action -The act or process of performing assessment or remedial activities taken in response to a release of a regulated substance. Corrective action plan (remedial action plan) -[As used in this subchapter, means] A
                                                                                                                                                                                                                                                                                                                                                                                                                    detailed plan developed to address site remediation of soil and/or groundwater contamination that provides for adequate protection of human health, safety, and the environment. The selection of the most effective and efficient remedial method will be dictated by the nature and location of the release, the site soils, hydrogeological conditions, and the required degree of remediation. The remedial method selection should take into consideration such factors as cost, time, and state compliance requirements with each method. The title of any report which contains a corrective action plan must include the designation "remedial action plan." Eligible operator -[As used in this subchapter, means] A
                                                                                                                                                                                                                                                                                                                                                                                                                      ny person in control of or having the responsibility for the daily operation of a petroleum storage tank who meets the eligibility requirements prescribed in sec.334.310 of this title (relating to Requirements for Eligibility-Interim Period). Eligible owner -[As used in this subchapter, means] A
                                                                                                                                                                                                                                                                                                                                                                                                                        ny person who meets the eligibility requirements prescribed in s334.310 of this title (relating to Requirements for Eligibility -Interim Period) and who currently holds legal possession or ownership of a total or partial interest in a petroleum storage tank. For the purposes of this subchapter, where the actual ownership of the petroleum storage tank is either uncertain, unknown, or in dispute, the fee simple owner of the surface estate where the petroleum storage tank is located shall be considered the petroleum storage tank owner, unless it can be shown by appropriate documentation (deed reservation, invoice, bill of sale, etc.) or by other legally acceptable means that the petroleum storage tank is owned by another. "Owner" does not include a person who holds an interest in a petroleum storage tank solely for financial security purposes unless, through foreclosure or other related actions, the holder of such security interest has taken legal possession of the petroleum storage tank. For purposes of this subchapter, if it can be demonstrated that a petroleum storage tank has been "out of operation" as that term is defined in sec.334.2 of this title (relating to Definitions) for a period ten years, the tank shall be considered property of the owner of the surface estate. Legislature, Regular Session, Chapter 228, effective May 31, 1989. Emergency-Any existing or potential fire, explosion, or vapor hazards which pose an imminent threat to human health and safety, or any imminent threat at the point of actual use to drinking water supplies actually being used. Initial abatement measures-[As used in this subchapter, means] T
                                                                                                                                                                                                                                                                                                                                                                                                                          he mitigation of all existing or potential fire, explosion or vapor hazards including the removal of phase-separated product to provide adequate protection of human health, safety and the environment in emergency situations or other situations where emergency actions must be implemented to prevent further impacts to the environment. Petroleum product -A product
                                                                                                                                                                                                                                                                                                                                                                                                                            obtained from distilling and processing crude oil and that is capable of being used as a fuel for the propulsion of a motor vehicle or aircraft, including motor gasoline, gasohol, other alcohol blended fuels, aviation gasoline, kerosene, distillate fuel oil, and #1 and #2 diesel. The term does not include naphtha-type jet fuel, kerosene-type jet fuel, or a petroleum product destined for use in chemical manufacturing or feedstock of that manufacturing. Prime contractor -[As used in this subchapter, means] A
                                                                                                                                                                                                                                                                                                                                                                                                                              ny natural person, firm, or any entity responsible for the contracting of any corrective action services. Prime corrective action specialist-[As used in this subchapter, means] A
                                                                                                                                                                                                                                                                                                                                                                                                                                natural person, consulting firm, or any entity engaging in corrective action services, or acting as coordinator of others engaged in corrective action services. Tank removal-The physical removal of an underground storage tank from the subsurface. Tank removals include removal and replacement of surface material, backfill excavation, tank removal and disposal, backfilling and compaction of excavation, and any other activities typically associated with the tank removal process. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 8, 1993. TRD-9319928 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 463-8069 Subchapter M. Reimbursable Cost Guidelines for the Petroleum Storage Tanks Reimbursement Program 31 TAC sec.334.560 The Texas Water Commission (Commission) proposes new sec.334.560 concerning Reasonable Cost Guidelines for the Commission's Petroleum Storage Tank Reimbursement Program. The new section is proposed under the Texas Water Code, Chapter 26, Subchapter I, as enacted by Senate Bill 779, 70th Legislature, 1987, and as amended by House Bill 1588, 71st Legislature, 1989, and House Bill 1214, 72nd Legislature, 1991, which provides the Texas Water Commission with the authority to establish a program to regulate underground and aboveground storage tanks and to administer the petroleum storage tank remediation fund, and under the Texas Water Code, sec.5.103 and sec.5.105, which authorizes the Texas Water Commission to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve any general policy of the commission. This new section is also proposed under the Texas Water Code, sec.26.3573(g), which mandates that the commission make the most efficient use possible of money in the petroleum storage tank remediation fund and to provide the most effective protection to the environment and public health and safety. Section 26.3573(h) provides that the commission may implement by rule necessary guidelines for determining amounts that may be paid from the petroleum storage tank remediation fund. Proposed new sec.334.560 would adopt the Reimbursable Cost Guidelines to be used by the commission to evaluate the reimbursability of claims related to the cleanup of contamination from leaking petroleum storage tank sites. The Reimbursable Cost Guidelines have been developed to provide owners and operators with information regarding how their reimbursement application will be evaluated and what the reimbursable costs are for various cleanup activities. This document will provide for more consistency in the processing of reimbursement applications. The commission will use the guidelines to evaluate and process all claims for work performed on or after the effective date of this rule. The guidelines are not intended to set pricing for certain activities or to remove an element of competition for the petroleum storage tank industry. Rather, the guidelines are intended to allow for a range of costs that will not be static, but which can be as dynamic as necessary to support and enhance competition. The guidelines cover such cost categories as labor rates, equipment and supplies, laboratory costs, remedial action plan preparation, soil and groundwater remediation, initial abatement and emergency measures, site assessments, site closures, and hauling, disposal, and treatment of waste. Costs associated with work performed on or after March 12, 1993, for abandonment of tanks in place are not allowable costs and therefore are not included in the reimbursable cost guidelines. Costs associated with tank removals, including piping, pumps, and dispensers performed on or after March 12, 1993, are not allowable costs and are not included in the reimbursable cost guidelines. Tank removals include removal and replacement of surface material, backfill excavation, tank removal and disposal, backfilling and compaction of excavation, and any other activities typically associated with the tank removal process. Upon approval by the executive director, the costs associated with tank removals can be applied towards the deductible if corrective action is required. This change is necessary to enable the commission to preserve the petroleum storage tank reimbursement fund for reimbursement of those activities directly associated with necessary corrective action. The commission estimates that the disallowance for reimbursement of the costs associated with tank removals will save the fund up to $75 million dollars in fiscal year 1993. Upon May 21, 1993, these Reimbursable Cost Guidelines will supersede and replace the December 1, 1992, Reasonable Cost Guidelines distributed by the Commission. Stephen Minick, Commission's Budget and Planning Division, has determined that for the first five years this section is in effect there will be fiscal implications as a result of enforcement or administration of the section. The effects on state government will be cost savings in the Petroleum Storage Tank Remediation Fund. For the most part, this section will incorporate into rule existing policies for determination of reimbursable costs. The cost savings relative to these policies is probably not material. Relative to existing regulation, however, the cost savings are anticipated to be more significant. The actual savings to be realized is dependent on the specific reimbursement requests made and cannot be determined with accuracy. Cost savings realized will enable the commission to maximize the use of remediation funds for site cleanups and address the largest number of priority cases of contamination. No direct effects on local governments are anticipated. Local governments will benefit generally from the commission's more efficient use of funds by having available the maximum amount of revenue from which to pay claims for reimbursement. Any business requesting reimbursement for cleanup costs may have some effects from the use of these cost guidelines, but these are not anticipated to affect claims approvals significantly more than current practices. Mr. Minick also has determined that for the first five years these sections are in effect the public benefit anticipated as a result of enforcement of or compliance with the sections will be more effective use of public funds for remediation of actual or potential threats to groundwater or surface water, enhanced protection of public health and water quality and improved enforcement of the commission's authority regarding remediation of leaking petroleum storage tanks. Small businesses will be affected on the same basis and to the same extent as a larger concern. There are no additional costs anticipated to persons required to comply with this section as proposed. Comments on the proposal may be submitted to Michael Bame, Petroleum Storage Tank Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711-3087. Comments will be accepted until 5 p.m. for a period of 30 days following the date of this publication. Public meetings will be held to receive public comment. The new section is proposed under the Texas Water Code, s5.103 and sec.5. 105, which provide the Texas Water Commission with the authority to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.334.560. Reimbursable Cost Guidelines. The Texas Water Commission hereby adopts the Reimbursable Cost Guidelines
                                                                                                                                                                                                                                                                                                                                                                                                                                  for the Petroleum Storage Tank Reimbursement Program which are in effect as of May 21, 1993. Copies of this document are available upon request from the Texas Water Commission, Petroleum Storage Tank Division, P.O. Box 13087, Austin, Texas, 78711-3087. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 8, 1993. TRD-9319930 Mary Ruth Holder Director, Legal Division Texas Water Commission Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 463-8069 TITLE 34. PUBLIC FINANCE Part II. Texas State Treasury Chapter 11. Cigarette and Tobacco Products Tax Subchapter B. Cigarette Tax 34 TAC sec.11.52 (Editor's Note: The Texas State Treasury proposes for permanent adoption the new sec.11.52 it adopts on an emergency basis in this issue. The text of the new sec.11.52 is in the Emergency Rules section of this issue.) The Texas State Treasury proposes new sec.11.52, concerning the importation of 200 or fewer cigarettes into the state by persons 18 years of age or older for personal use and not for sale. This section provides definitions of terms used in the section, defines factual situations to which the section applies, and provides for enforcement by Texas Alcoholic Beverage Commission employees at ports of entry. John Bell, Deputy Treasurer, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Bell also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to stop the importation of tax-free cigarettes by persons younger than 18 years of age at ports of entry; and to collect any additional taxes due where more than 200 are imported. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Alicia M. Fechtel, General Counsel, Texas State Treasury, P.O. Box 12608, Austin, Texas 78711, (512) 463- 5971, FAX (512) 463-6040. The new section is proposed under the Texas Tax Code, sec.154.024(c) and sec.111.002, which provides the treasurer with the authority to adopt rules that do not conflict with the laws or the constitution of this state or the United States for the enforcement and collection of taxes and other revenue under Title 2, Texas Tax Code. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 4, 1993. TRD-9319839 Alicia M. Fechtel General Counsel Texas State Treasury Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 463-5971 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XIII. Texas Commission of Fire Protection Chapter 421. Standards for Certification 37 TAC sec.421.1 The Texas Commission on Fire Protection proposes an amendment to sec.421.1 (formerly sec.233.1), concerning minimum standards for basic structural fire protection personnel. The amendment changes the word "commission" to the "Fire Protection Personnel Advisory Committee." The amendment provides the method that the meetings may be called, the number of members on the committee, and the responsibility of the committee. Alton Bostick, standards and licensing division director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Bostick also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be clarification of procedures for meetings of the Fire Protection Personnel Advisory Committee. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The amendment is proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its power and duties; and the Texas Government Code, sec.419.023, which provides the commission with authority to establish a fire protection personnel advisory committee. sec.421.1. Procedures for Meetings. (a) Time and places. The Fire Protection Personnel Advisory Committee
                                                                                                                                                                                                                                                                                                                                                                                                                                    [commission] shall meet at such times and places in the State of Texas as it deems proper. The Fire Protection Personnel Advisory Committee shall meet at least twice each calendar year. (b) Meeting called. Meetings shall be called by the chairman, by the commission or upon the written request of five members
                                                                                                                                                                                                                                                                                                                                                                                                                                      [Meetings shall be called by the chairman upon his own motion, or upon the written request of five members]. (c) (No change.) (d) Members. The Fire Protection Personnel Advisory Committee shall consist of nine members appointed by the commission. Committee members serve at the will of the commission. (e)
                                                                                                                                                                                                                                                                                                                                                                                                                                        [(d)] Officers. Officers of the Fire Protection Personnel Advisory Committee
                                                                                                                                                                                                                                                                                                                                                                                                                                          [commission] shall consist of a chairman, vice-chairman, and secretary. The committee
                                                                                                                                                                                                                                                                                                                                                                                                                                            [commission] shall elect its officers from the appointed members at its first meeting and thereafter at its first meeting following January 1, of each year or upon the vacancy of an office,
                                                                                                                                                                                                                                                                                                                                                                                                                                              [succeeding new appointments to fill regular terms.] (f) Responsibility. The Fire Protection Advisory Committee shall review commission rules relating to fire protection personnel and fire departments and recommend changes in the rules to the commission. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 5, 1993. TRD-9319946 Jack Woods General Counsel Texas Commission of Fire Protection Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 873-1700 Chapter 423. Fire Suppression Subchapter A. Minimum Standards for Structure Fire Protection Personnel Certification 37 TAC sec.423.1 The Texas Commission on Fire Protection proposes an amendment to sec.423.1 (formerly sec.233.9), concerning minimum standards for basic structural fire protection personnel. The amendment adds the completion of the approved Basic Volunteer Fire Fighter Curriculum as specified in Chapter 1, of the commission's document titled "Commission Volunteer Certification Curriculum Manual" as an option for being certified as structure fire protection personnel. The amendment also provides criteria for approval of basic fire suppression programs from other jurisdictions, including out-of-state and military programs, to determine equivalency. Alton Bostick, standards and licensing division director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Bostick also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be a clearer understanding of the requirements for certification as structure fire protection personnel. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed; however, out-of-state and military personnel may be required to furnish more detailed documentation than current rules require. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The amendment is proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its power and duties; Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel; Texas Government Code, sec.419.032(d), which provides the commission with authority to certify persons that are qualified as fire protection personnel; and Texas Government Code, sec.419.075, which provides the commission with authority to certify volunteers under Subchapter B. sec.423.1. Minimum Standards for Basic Structural Fire Protection Personnel. (a) (No change.) (b) All full-time, full-paid employees of any local government entity, who are assigned structure fire protection duties must be certified by the commission. In order to be certified, structure fire protection personnel must: (1) complete a commission-approved basic structure fire suppression program and successfully pass the commission examination as specified in Chapter 439, of this title, pertaining to Examinations for Certification
                                                                                                                                                                                                                                                                                                                                                                                                                                                prior to being assigned to fire suppression duties. An approved basic structure fire suppression program shall consist of one of the following: (A) completion of the commission-approved Basic Fire Suppression Curriculum as specified in Chapter 1, of the commission's document titled "Commission Certification Curriculum Manual", as adopted by reference in sec.443.1 of this title (relating to Basic Fire Suppression Curriculum) [and successfully pass the commission examination as specified in Chapter 439, of this title, pertaining to Examinations for Certification, within one year prior to the date of assignment to fire suppression]; or (B) completion of the commission-approved Basic Volunteer Fire Fighter Curriculum as specified in Chapter 1, of the commission's document titled "Commission Volunteer Certification Curriculum Manual", as adopted by reference in sec.473.3 of this title (relating to Basic Volunteer Fire Fighter Curriculum) and successfully pass the commission examinations as specified in Chapter 479 of this title (relating to Examinations for Volunteer Fire Fighter Certification). (C)
                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(B)] completion of an out-of-state training program deemed equivalent to the commission-approved Basic Fire Suppression Curriculum[,] and
                                                                                                                                                                                                                                                                                                                                                                                                                                                    documentation of one years' experience as a full-time/full-paid fire fighter [and successfully pass the commission examination as specified in sec.439.17(b) of this title (relating to Testing for Proof of Proficiency)]; or (D)
                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(C)] completion of a military training program deemed equivalent to a commission-approved basic fire suppression curriculum[,] and
                                                                                                                                                                                                                                                                                                                                                                                                                                                        documentation of one years' experience as a full-time/full-paid fire fighter [and successfully pass the commission examination as specified in sec.439.17(b) of this title;]. (2)-(3) (No change.) (c) A basic fire suppression program from another jurisdiction may be submitted to the commission for approval as required in the Texas Government Code, sec.419.032(d), Appointment of Fire Protection Personnel. These programs include out-of-state and military programs and shall be deemed equivalent by the commission if the subjects taught, subject content, hours of training in a subject, and total hours of training meet or exceed those contained in Chapter 1 of the commission's document titled "Commission Curriculum Certification Manual", as adopted by reference in sec.443.1 of this title (relating to Basic Fire Suppression Curriculum).
                                                                                                                                                                                                                                                                                                                                                                                                                                                          [All questions of training equivalency will be decided by the commission.] (d)-(e) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 5, 1993. TRD-9319947 Jack Woods General Counsel Texas Commission of Fire Protection Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 873-1700 Chapter 425. Fire Protection Instructor Subchapter A. Instructor Certification 37 TAC sec.425.5, sec.425.7 The Texas Commission on Fire Protection proposes amendments to sec.425.5 (formerly sec.233.85) and sec.425.7 (sec.233.87), concerning fire protection instructors including advanced and master level instructor certifications. The amendment to sec.425.5 deletes the language requiring an advanced instructor to be working full time as an instructor or training officer. The amendment to sec.425.7 changes the prerequisites required to obtain a master fire protection instructor certification to require master certification in another discipline. Alton Bostick, standards and licensing division director, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Bostick also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections as proposed will be to allow more fire fighters to obtain advanced levels of certification without being full-time instructors. The change to the requirements for a master instructor certificate will also encourage persons holding master certificates in other disciplines to become instructors. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The amendments are proposed under Texas Government Code, s419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028(b)(3), which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. sec.425.5. Minimum Standards for Advanced Fire Protection Instructor Certification (Equivalent to NFPA 1041, Instructor III Level). In order to be certified as an Advanced Instructor the individual must: (1) (No change.) (2) be a member of a fire department, as defined in s421.5 of this title (relating to Definitions), and have as a minimum five years of experience[, devoting full time to fire training and related responsibilities]; [(3) be a full-time instructor or training officer;] (3)
                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(4)] provide documentation that they are knowledgeable in the subjects that they will teach and successfully complete the following commission-approved instructor training courses: (A) a commission-approved Instructional Aids course consisting of at least 30 class hours or three college semester hours or the National Fire Academy course, Instructional Methodology, can be substituted for Methods of Teaching and Instructional Aids; and (B) a commission-approved course in Analysis and Course Making consisting of at least 30 class hours or three college semester hours; and (C) a commission-approved course in Organization and Use of Instructional Materials consisting of at least 30 class hours or three college semester hours. (The National Fire Academy course Course Development can be substituted for Analysis and Course Making and Organization and Use of Instructional Material.) sec.425.7. Minimum Standards for Master Fire Protection Instructor Certification (Equivalent to NFPA Standard 1041, Instructor IV Level).
                                                                                                                                                                                                                                                                                                                                                                                                                                                              In order to be certified as a Master Instructor the individual must: (1) (No change.) (2) hold as a prerequisite a Master Structural Fire Protection Personnel Certification, a Master Aircraft Crash and Rescue Fire Protection Personnel Certification, a Master Inspector Certification, or a Master Fire and Arson Investigator Certification
                                                                                                                                                                                                                                                                                                                                                                                                                                                                [possess an associate degree or 60 semester hours in fire science or any other college program which includes at least 15 semester hours of leadership-type programs, such as: effective speaking, human relations, effective communication management, fire administration, parliamentary procedure, and other equally related subjects; and]; [(3) be a full-time instructor or training officer.] (Instructors who want to meet NFPA Standard 1041 for Instructor IV level must first meet all requirements for NFPA 1041, Instructor III level.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 5, 1993. TRD-9319948 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 873-1700 Chapter 429. Minimum Standards for Fire Inspectors 37 TAC sec.sec.429.1, 429.3, 429.5, 429.7, 429.9, 429.11, 429.13, 429.15, 429.17 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Fire Protection or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Commission on Fire Protection proposes the repeal of sec.sec.429.1 (formerly 233.93), 429.3 (233.95), 429.5 (233.97), 429.7 (233.99), 429.9 (233. 101), 429.11 (233.103), 429.13 (233.105), 429.15 (233.107), and 429.17 (233. 109), concerning minimum standards for fire inspectors. The repealed sections will be replaced with new sections concerning the same subject matter with an effective date of January 1, 1994. Alton Bostick, standards and licensing division director, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state government as a result of enforcing or administering the repeals. The fiscal implications for local government resulting from the new sections which replace the repealed sections are described in the preamble for those new sections published in the same issue of the Texas Register. Mr. Bostick also has determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be elimination of obsolete language and increased competency of persons assigned fire inspection duties, especially in smaller cities. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The repeals are proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.022(a)(5) which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. sec.429.1. Minimum Standards for Fire Prevention Personnel. sec.429.3. Inspector Certification Level Based on Population. sec.429.5. Minimum Standards for "C" Inspector Certification. sec.429.7. Minimum Standards for "B" Inspector Certification. sec.429.9. Minimum Standard for "A" Inspector Certification. sec.429.11. Minimum Standards for Intermediate Inspector Certification. sec.429.13. Minimum Standards for Advanced Inspector Certification. sec.429.15. Minimum Standards for Master Inspector Certification. sec.429.17. Minimum Standards for Fire Fighter/Fire Inspector Limited Certification. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 5, 1993. TRD-9319950 Jack Woods General Counsel Texas Commission on Fire Protection Earliest possible date of adoption: April 12, 1993 For further information, please call: (512) 873-1700 37 TAC sec.sec.429.1, 429.3, 429.5, 429.7, 429.9, 429.11 The Texas Commission on Fire Protection proposes new sec. s429.1, 429.3, 429.5, 429.7, 429.9, and 429.11, concerning minimum standards for fire inspection personnel. The new sections replace repealed sections pertaining to the same subject matter and have a proposed effective date of January 1, 1994. New s429.1 requires fire inspector certification of all full-time, fully paid local government employees who are assigned fire code enforcement duties. New sec.429.3 concerning standards for Basic Fire Inspector Certification replaces current language where the number of training hours depends on city population with a single basic curriculum requirement consisting of either a 226-hour course or possession of an associate degree, including 21 semester hours in specified fire protection and prevention courses. The new sections pertaining to intermediate, advanced and master certification provide requirements consistent with higher levels of structure certification. Alton Bostick, standards and licensing division director, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state government as a result of enforcing or administering the sections except state agencies that employ fire inspection personnel. There will be fiscal implications for local government for training of new fire prevention personnel depending on population of 70,000 or less, training requirements are increased from 140 class hours to 226 class hours. In cities with populations of 70,001 to 250,000, training is increased from hours to 226. Finally, in cities with population greater than 25 4>0,000, the training requirement is increased from 200 hours to 226. The increased number of training hours is mitigated by providing for credit in subjects of the basic fire inspector curriculum totalling 52 hours for individuals with basic structure fire protection personnel certification, as these same subjects are included in the Basic Fire Suppression Curriculum. Therefore, in cities which assign persons previously certified in structure fire protection, there will be a net reduction of training hours in cities with population over 250,000; only four additional hours for cities with population of 70,001 to 250,000; and only a net 34-hour increase for cities with population of 70,000 or less. Based on the number and distribution of current inspector certifications, the increase in training hours will adversely affect only 15% of new inspectors. The exact cost of approximately one additional week of training will vary depending on the source of training and the compensation of the inspector trainee. Mr. Bostick also has determined that there will be no impact on local employment as a result of enforcing and administering the new sections. Mr. Bostick also has determined that for the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be increased competency of persons assigned fire inspection duties particularly in smaller cities which often face the same hazards as larger cities, as well as more effective for fire prevention services for the public. In addition, the elimination of the one-year experience requirement permits fire inspectors to be recognized as expert witnesses upon completion of training. There will be no effect on small businesses. The cost to persons will be nominal because most departments provide training for their fire inspectors, although additional time may be required of some individuals. Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768- 2286. The new sections are proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. sec.429.1. Minimum Standards for Fire Inspection Personnel. (a) The effective date of this chapter shall be January 1, 1994. All full- time, full-paid personnel, as employed by a government entity who are assigned fire code enforcement activities, must be certified by the Commission as fire inspectors. (b) Fire prevention inspection personnel must complete all requirements for certification and be certified within one year of initial appointment to such position. (c) All full-time, full-paid employees of a governmental entity who are assigned fire code enforcement duties, must be certified, as a minimum, as either: (1) a Basic Fire Inspector as specified in sec.429.3 of this title (relating to Minimum Standards for Basic Fire Inspector Certification); or (2) a Fire Fighter/Fire Inspector Limited as specified in sec.429.11 of this title (relating to Minimum Standards for Fire Fighter/Fire Inspector Limited Certification). (d) Individuals who currently hold an "A", "B", or "C" Inspector certification on the effective date of this section, will upon renewal or reissue, be issued a Basic Fire Inspector Certification. (e) All individuals holding any level of fire inspector certification shall be required to comply with the continuing education requirements in sec.441.13 of this title (relating to Continuing Education Requirements for Fire Inspection Personnel). (f) Code enforcement is defined as the enforcement of laws, codes, and ordinances of the authority having jurisdiction pertaining to fire prevention. sec.429.3. Minimum Standards for Basic Fire Inspector Certification. (a) The effective date of this section shall be January 1, 1994. Training programs that are intended to satisfy the requirements of this section, that are started after the effective date of this section, must meet the curriculum, competencies, hours, and examination requirements of this section. (b) In order to be certified by the commission as a Basic Fire Inspector an individual must: (1) complete a commission-approved fire inspection program and successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification) within one year from the date of initial appointment to the position. An approved basic fire inspection program shall consist of one of the following: (A) completion of the commission approved Basic Fire Inspector Curriculum as specified in Chapter 4, of the commission's document titled "Commission Certification Curriculum Manual", as adopted by reference in sec.443.7 of this title (relating to Basic Fire Inspector Curriculum); or (B) successful completion of an out-of-state training program which has been submitted to the commission for evaluation and found to meet the minimum requirements as listed in the Basic Fire Inspector Curriculum as specified in Chapter 4, of the commission's document titled "Commission Certification Curriculum Manual" as adopted by reference in sec.443.7 of this title; or (C) possession, as a minimum of an Association Degree fr